HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE

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1 S. HRG STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS FIRST SESSION SEPTEMBER 9, 2009 Serial No. J Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE WASHINGTON PDF : 2010 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) ; DC area (202) Fax: (202) Mail: Stop IDCC, Washington, DC VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

2 HERB KOHL, Wisconsin DIANNE FEINSTEIN, California RUSSELL D. FEINGOLD, Wisconsin CHARLES E. SCHUMER, New York RICHARD J. DURBIN, Illinois BENJAMIN L. CARDIN, Maryland SHELDON WHITEHOUSE, Rhode Island AMY KLOBUCHAR, Minnesota EDWARD E. KAUFMAN, Delaware ARLEN SPECTER, Pennsylvania AL FRANKEN, Minnesota COMMITTEE ON THE JUDICIARY PATRICK J. LEAHY, Vermont, Chairman JEFF SESSIONS, Alabama ORRIN G. HATCH, Utah CHARLES E. GRASSLEY, Iowa JON KYL, Arizona LINDSEY GRAHAM, South Carolina JOHN CORNYN, Texas TOM COBURN, Oklahoma BRUCE A. COHEN, Chief Counsel and Staff Director MATT MINER, Republican Chief Counsel (II) VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

3 C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement Franken, Hon. Al, A U.S. Senator from the State of Minnesota... 4 prepared statement Leahy, Hon. Patrick J., A U.S. Senator from the State of Vermont... 1 prepared statement Sessions, Hon. Jeff, A U.S. Senator from the State of Alabama... 3 WITNESSES Buel, Eric, Laboratory Director, Vermont Forensic Laboratory, State of Vermont Department of Public Safety, Waterbury, Vermont... 6 Giannelli, Paul, Professor, Case Western Reserve University, Cleveland, Ohio 12 Hurtt, Harold, Chief of Police, Huston Police Department, Houston, Texas Matson, Barry, Deputy Director, Alabama District Attorneys Association, Chief Prosecutor, Alabama Computer Forensics Laboratories, Montgomery, Alabama Neufeld, Peter, Co-Director, The Innocence Project, New York, New York... 8 Redle, Matthew F., County and Prosecuting Attorney, Sheridan County, Sheridan, Wyoming QUESTIONS AND ANSWERS Responses of Eric Buel to questions submitted by Senator Specter Responses of Paul Giannell to questions submitted by Senator Specter Responses of Harold Hurtt to questions submitted by Senator Specter Responses of Barry Matsor to questions submitted by Senator Specter Responses of Peter Neufeld to questions submitted by Senator Specter Responses of Matthew F. Redle to questions submitted by Senator Specter SUBMISSIONS FOR THE RECORD Bohan, Thomas L., Peaks Island, Maine, statement Buel, Eric, Laboratory Director, Vermont Forensic Laboratory, State of Vermont Department of Public Safety, Waterbury, Vermont, statement Castelle, George, Chief Public Defender, Kanowha County, West Virginia, statement Cole, Simon A, Associate Professor & Chair, Department of Criminology, University of California, Santa Barbara, California, statement Donohoe, Colonel W.F., Superintendent, West Virginia State Police, statement Findley, Keith A., President, University of Wisconsin, Madison Law School, Madison, Wisconsin, statement Garrett, Brandon L., Associate Professor of Law, University of Virginia School of Law, Charlottesville, Virginia, statement Giannelli, Paul, Professor, Case Western Reserve University, Cleveland, Ohio, statement Human Factors Consultants, Ralph Norman Haber, PH.D., and Lyn Haber, Ph.D., Partners Swall Meadows, California, statement Hurtt, Harold, Chief of Police, Huston Police Department, Houston, Texas, statement (III) VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

4 IV Page Matson, Barry, Deputy Director, Alabama District Attorneys Association, Chief Prosecutor, Alabama Computer Forensics Laboratories, Montgomery, Alabama, statement National Association of Criminal Defense Lawyers, Washington, DC, statement Neufeld, Peter, Co-Director, The Innocence Project, New York, New York, statement Redle, Matthew F., County and Prosecuting Attorney, Sheridan County, Sheridan, Wyoming, statement Rudin, Norah, Forensic Consultant, and Keith Inman, M. Crime, Senior Ferensic Scientist, Forensic Analytical Sciences, Inc and Assistant Professor, California State University, East Bay, Hayward, California, statement Saks, Michael J., Regents Professor, Sandra Day O Connor College of Law, Arizona State University, Tempe, Arizona, statement Shelton, Hilary, Director, NAACP Washington Bureau & Senior Vice President for Advocacy and Policy, Washington, DC, statement Sloan, Virginia E., President, Constitution Project, Washington, DC, statement ADDITIONAL SUBMISSIONS FOR THE RECORD Submissions for the record not printed due to voluminous nature, previously printed by an agency of the Federal Government, or other criteria determined by the Committee, list: Virginia Law Review, Volume 95, March 2009, Number 1 VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

5 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES WEDNESDAY, SEPTEMBER 9, 2009 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC The Committee met, pursuant to notice, at 10:10 a.m., Room 226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Durbin, Whitehouse, Klobuchar, Franken, and Sessions. OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT Chairman LEAHY. Good morning everybody. Please sit down. Please, I m sorry. I was somewhat plagued getting in. I was just whispering to Senator Sessions that it can take well over an hour to go 10 miles, it seems like. A bit excessive, around here. Dr. Buel and I both live on dirt roads in the little town of Middlesex, and we measure our travel in minutes, even during rush hour. Rush hour means you sometimes have 5 to 10 cars every 10 minutes or so. But on a more serious matter, in March this Committee began our examination of the serious problems in forensic science that go to the very heart of our criminal justice system. Both Senator Sessions and I used forensic science in our past lives as prosecutors. But today we re going to hear from representatives of the professional communities that are going to have to work together to make advances to solve the problems. We know a lot of important work is done through forensics, and those who are with us should be proud of their good work. Scientific advancements can help prove that you have the guilty person. At the same time, it is equally important, it can help exonerate the innocent. We have to ensure that the forensic science rises to the highest scientific standards, has the maximum possible reliability. Unfortunately, since the report and testimony from the National Academy of Sciences earlier this year, we ve heard more about the severity of the problem. The current issue of The New Yorker includes an article that presents strong evidence that in 2004, what we would all consider the unthinkable happened: an innocent man may have been executed for a crime he did not commit, based in large part on forensic testimony and evidence. (1) VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

6 2 The Committee will soon turn to reauthorizing and strengthening the Innocence Protection Act, and that provides very important tools, passed by bipartisan majorities in the Congress, to prevent that kind of tragedy. The key point for today s hearing is that the prosecution of Cameron Todd Willingham, discussed in The New Yorker article, rested largely on forensic evidence in that case, burn analysis that may not have had any scientific basis. Our criminal justice system, particularly the most serious cases, have to be based on facts. Also, the Supreme Court held in the case of Melendez-Diaz v. Massachusetts that forensic examiners must present evidence in court, be subject to cross-examination, rather than simply submitting reports of their findings. Again, that s something I did as a routine matter as a prosecutor 35 years ago. The Supreme Court holding stems from a recognition that forensic findings may not always be as reliable as we would hope or as they might appear. You know, many have the image from the television shows like CSI that forensic scientists get to review crime scene evidence in sleek, ultra-modern, state-of-the-art laboratories. Well, those of you who are experts know that is not always the case, by any means. In fact, the so-called CSI effect may be doing harm by suggesting that forensic science is well-funded, and that their results are almost always infallible. As it turns out, that s not the reality examined by the National Academy of Sciences. According to the latest available statistics from the Justice Department in 2005, the backlog of forensic exams was more than 350,000 the backlog nationwide, up 24 percent from 3 years ago. One out of every five labs does not meet the standards for accreditation set by the American Society of Crime Lab Directors. As the National Academy of Sciences report makes clear, we can t allow such nationwide deficiencies in forensic sciences to continue. I think it s critically important to our criminal justice system that we have accurate, timely forensic science so we can find and punish the guilty, but also exonerate the innocent. What helps is when we take perpetrators of serious crimes off the streets. It doesn t help if we took the wrong person off the street because the criminal is still out there. We can t wait for the backlogs to get worse or the next scandal to take place. I m looking forward to working with Senator Sessions, Senator Klobuchar, and other interested members of this Committee to find solutions to this. Now, we re going to hear testimony from Dr. Eric Buel, as I mentioned. He is the respected director of the Vermont Forensic Laboratory, someone who has the respect of both the prosecution and defense. Vermont s lab has done consistently excellent work and it s helped to solve many important cases. Dr. Buel nonetheless, recognizes the need for more standards, more research, more funding. I m glad to welcome back to the Committee Peter Neufeld. Mr. Neufeld has worked with us. He s the co-director of The Innocence Project, and he s worked with us for years in this Committee. His work on individual cases and bringing important changes to the law has been very, very helpful. VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

7 3 I look forward to the insights of fellow prosecutors and law enforcement officers who are on the front line every day. The report issued by the National Academy of Sciences is detailed and farreaching and can provide a foundation for broad consensus for change. It calls for mandating national standards for enforcing best practices and points to a need for standards for the certification of individual examiners, accreditation of their laboratories, and the assets to invest in the research underlying modern forensic sciences. Now, there are areas of significant controversy, including the report s recommendation of another major new government agency and for the total separation of forensics and law enforcement. There will be disagreement on that, but I hope we can find the areas that we all agree on. So, I hope we can work together toward strengthening our forensic system, rooted in science. With that, I ll put the rest of my statement in the record. [The prepared statement of Chairman Leahy appears as a submission for the record.] Chairman LEAHY. Senator Sessions. STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA Senator SESSIONS. Thank you, Mr. Chairman. Forensic sciences in America does present a challenge, in my view. It s something that I have felt strongly about for many, many years. If you look at the criminal justice system as a comprehensive whole and you ask yourself, are there bottlenecks in this system that are causing difficulties, I think you would say that the forensic sciences are being shortchanged financially and we can do better. I have believed that for some time. You consider huge sheriffs departments, huge police departments, probation departments, judicial centers, prison systems, the amount of money going to that decisive entity, the forensic scientist who can make the difference in a case being ready to go to trial and being tried fairly and objectively and can be really adverse to the whole criminal justice system. So, I worry about that. As a prosecutor and one who felt that trials were too much delayed, I conducted research of it as Attorney General of Alabama and concluded one of the biggest things that was delaying justice in America is getting your forensic sciences reports completed in an effectively and timely way. Prosecutors have a slam-dunk cocaine case, the person is tape recorded, but months go by before somebody comes back and says the powder is cocaine. Now, maybe there are more complicated drugs, pills and that kind of thing that need to be analyzed before the case can go forward. Some prosecutors will use testimony to go forward with an indictment. Some will not return an indictment until they ve received that information. Some cases cannot go forward based on fingerprints, based on lack of fingerprints or lack of ballistics or DNA evidence that needs to be promptly produced. So if you look at the entire criminal justice system, I think you could say that more innocent people could have a cloud removed from them and not be charged. More guilty people could be charged VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

8 4 and proceed forward to justice and get their just desserts with a more effective forensic system in America. The Commission report has some good recommendations. I don t accept the idea that they seem to suggest that fingerprints is not a proven technology. I don t accept some of the other forensics that are not scientific well-based. For example, the Commission strongly praises the scientific analysis that has gone behind DNA and suggests that should be done more comprehensively in other areas, and perhaps it should. Perhaps it should, Mr. Chairman. Maybe we can tighten that up and have some sort of better scientific basis for fingerprints and other analysis. But I don t think we should suggest that those proven scientific principles that we ve been using for decades are somehow uncertain and leaving prosecutors having to fend off challenges on the most basic issues in a trial. So, tens of thousands of people, I suggest, are not being promptly tried. While they re out on bail or un-indicted, they re committing crimes this very moment. A lot of that is because we ve not invested enough in our forensic sciences so that we can get accurate and prompt reports. I believe it s a very important issue, Mr. Chairman. Thank you for having this hearing. I believe the Commission kicked off a national discussion, and maybe we can make some progress. I certainly hope so. Chairman LEAHY. Well, thank you, Senator Sessions. You and I have worked on these issues for years, and I think this is an important thing. Senator Feingold has a statement to place in the record. [The prepared statement of Senator Feingold appears as a submission for the record.] Chairman LEAHY. Did you want to Senator FRANKEN. Yes. I have a statement, Mr. Chairman. Chairman LEAHY. Go ahead. STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE STATE OF MINNESOTA Senator FRANKEN. Okay. Thank you. Thank you, Mr. Chairman, for holding this incredibly important hearing. We incarcerate more people than any other industrialized nation in fact, we incarcerate more people than any nation, period. We have 2.3 million prisoners behind bars. Compare that to China, which has four times our population but only only 1.6 million prisoners. We also have the world s highest incarceration rate, more than five times higher than the world s median rate; even though we have 5 percent of the world s population, we have 25 percent of its inmates. These are worrying figures for any country, let alone the world s leading democracy. But they are especially troubling when we consider that the forensic techniques used to prosecute and convict many of these individuals have come under serious question. Earlier this year, pursuant to a congressional mandate, the National Academy of Sciences released a report evaluating the scientific integrity of the forensic techniques used daily in thousands of crime labs around the country, including DNA analysis, fingerprinting, firearms identification, and hair/fiber analysis. VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

9 5 The report which was published after 2 years of research and review had a damning conclusion, which I will restate here. It concluded that, With the exception of nuclear DNA analysis, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. The fact is that many forensic tests have never been exposed to stringent scientific scrutiny. For example, the National Academy s report revealed that there is currently no objective uniform method of fingerprint analysis or standard for fingerprint identification. In fact, in the United States the standard for identification, how many points match between two prints, has been deliberatively kept subjective to allow for maximum flexibility by the examiner. This means that one examiner can require just 6 points for comparison before declaring a match, while another can require 14 points. Bad forensic techniques result in false convictions. That s obvious. In a review of 242 DNA exonerations, The Innocence Project found that a large number of the cases involved invalidated or improper forensic science. The number of false convictions is surely higher, however, since 90 percent of criminal cases actually do not involve biological evidence that can irrefutably exonerate someone through DNA testing. What is less obvious is that bad forensics keeps the real criminals on the streets. Of the 242 DNA post-conviction exonerations nationwide, the real perpetrators were identified in 105 cases. In those 105 cases, while innocent people were in jail, the real perpetrators committed, and were convicted of, 90 serious violent offenses, including 56 rapes and 19 murders. False convictions are a threat and tragedy, both for the innocent and for every law-abiding citizen in the Nation. In 2006, Supreme Court Justice Antonin Scalia declared that there has not been a single case, not one, in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it. The innocent s name would be shouted from the rooftops. Sadly, that day has come after the execution of Cameron Todd Willingham. It s being shouted from the rooftops today, this week, by The New Yorker. The Fifth and Fourteenth Amendments guarantee that all Americans will not be deprived of life, liberty or property without due process of law. This due process right applies to States and it applies to the Federal Government. If it means anything, it means that the tools we use to determine innocence or guilt must be based on sound, rigorous science. Until we can be confident of that, I think we should ask ourselves whether it would be appropriate to impose a nationwide moratorium on the death penalty. Can we, as a law-abiding Nation, execute anyone without being 100 percent certain that they are guilty? Can we risk another Cameron Todd Willingham? I look forward to hearing from all the witnesses today. Thank you, Mr. Chairman. Chairman LEAHY. Thank you, Senator Franken. VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

10 6 The first witness is Dr. Eric Buel, current director of the Vermont Forensics Laboratory, a position he s held for the last 11 years. He has 30 years of experience analyzing forensic evidence for the State of Vermont and he is widely recognized for his expertise on forensic DNA analysis. In 1990, Dr. Buel established the Vermont DNA Analysis Program. He is a past board member of the American Society of Crime Laboratory Directors. He serves on the editorial review board of The Journal of Forensic Sciences and has published articles on forensic drug and DNA analysis. He received his bachelor s degree from the University of Delaware and his Ph.D. in biochemistry from the University of Missouri at Kansas City. As I mentioned earlier, he lives in one of the prettiest towns of Vermont. Dr. Buel. Is your microphone on? STATEMENT OF DR. ERIC BUEL, LABORATORY DIRECTOR, VERMONT FORENSIC LABORATORY, STATE OF VERMONT DEPARTMENT OF PUBLIC SAFETY, WATERBURY, VT Dr. BUEL. I haven t been here for a while, sir. Chairman LEAHY. We have changed a bit. Dr. BUEL. Yes. Technology. Good morning, Mr. Chairman, members of the Senate Judiciary. Thank you for the invitation to speak with you about how best to provide forensic science to the citizens of our great country. I have been in the field of forensic science for almost 30 years, the last 11 as a laboratory director. I am privileged and honored to speak with you about forensic science and how best to implement the recommendations in the National Academy of Sciences report. With your permission, Mr. Chairman, I d like to read a statement into the record. Chairman LEAHY. Please. Dr. BUEL. Okay. Several years ago, I served as a board member for the American Society of Crime Lab Directors. A theme that I brought forward for consideration was a long-term goal for us and for society. That goal was for every crime victim to expect the highest level of forensic science services regardless of where in the United States he/she was victimized. Her case would not lie for months in a freezer awaiting examination, resources would be available to perform DNA profiling, and the DNA database would be current. Fingerprints recovered would not fade with time awaiting analysis, and the AFIS database would be fully supported and recently updated. The laboratory would have the resources to provide the type of services our citizens should have in their time of need. The resources necessary to make that desired reality have not been provided to the State and local crime labs. The Federal funds have flowed toward the reduction of backlogs in DNA, and although this assistance is appreciated and has done much good, crimes continue to go unsolved, citizens continue to be victimized as the backlogs in other forensic disciplines grow and leave cases unresolved. Mr. Chairman, we need to address the capacity in our crime lab system. We need to provide resolution to these cases. We need secure and stable funding. We need comprehensive forensic reform. VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

11 7 As you know, the National Academy of Sciences clearly recognized this and it provided numerous recommendations to reform and modernize our system. Let me briefly highlight just a couple of points detailed in the NAS report. Quality assurance is a critical component to ensure quality work. The forensic community has made great strides in this regard through the accreditation process. I agree with the findings of the NAS report that all laboratories performing forensic science must be accredited with certified staff. Accreditation and certification of both laboratories and individuals should be prioritized and funded to allow these activities to occur as soon as possible. There has been much discussion about forensic services that may require further research to address accuracy and reliability. Let me briefly describe a process that may assist us to find a path forward in that regard. During the early days of DNA analysis, there were many questions concerning how to apply this new science appropriately to forensic case work. Studies by the National Research Council culminated in two reports that offered recommendations and suggestions for DNA testing by the forensic community based on adherence to high-quality standards and uniform procedures. Through the work of the council and working groups, a pathway was created for the forensic DNA community to follow. The Federal Government recognized the need to fund this emerging science, and did so. This provided laboratories with the resources to properly train their scientists and purchase state-of-the-art instrumentation. These funds permitted laboratories to initiate programs, submit expectations, and has resulted in the implementation of what has become a very successful forensic program. This model could be replicated for the other disciplines with the proper resources from the Federal Government. Through a full vetting of the data, methods and procedures currently used by a discipline, appropriate procedures could be modified or additional standards applied if the research indicates the need for change. If further research is needed, Congress must fund this research to resolve unanswered questions. The committee members reviewing the science must include experts from both academia and the forensic community to allow a mutual exchange of ideas and understanding of the work that is performed. Through this collaborative effort, the success recognized by the DNA program could be realized by each forensic discipline. The National Academy of Sciences has identified the needs of the forensic community and we have an opportunity to make use of the report to make the necessary improvements in our science. I would recommend that Congress take appropriate steps to meet these challenges discussed in the report and to promote and provide the best possible science for our people. Thank you very much. Chairman LEAHY. Thank you very much, Doctor. Thank you for being here, as always. Peter Neufeld co-founded and co-directs The Innocence Project, an independent, nonprofit organization affiliated with the Benjamin N. Cardozo School of Law. He is also a partner in the civil rights law firm, Cochran, Neufeld and Scheck. For the last 12 VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

12 8 years, he s served on the New York State Commission on Forensic Science, which has responsibility for regulating all State and local crime laboratories in New York. He has co-authored several influential books on the use of forensic evidence in criminal cases and post-conviction review. Prior to his work with The Innocence Project, Mr. Neufeld taught trial advocacy at Fordham University Law School and was a staff attorney for the Legal Aid Society of New York. He received his law degree from New York University School of Law, his bachelor s from University of Wisconsin. He s no stranger to this Committee, and it s nice to have you back here with us. Go ahead, please. STATEMENT OF PETER NEUFELD, CO-DIRECTOR, THE INNOCENCE PROJECT NEW YORK, NEW YORK Mr. NEUFELD. Thank you, Chairman Leahy, Ranking Member Sessions, and of course, Senator Franken. Thank you all for being here. I am the co-founder of The Innocence Project and it is a special occasion for me to be back here. I have an incredible respect for this Committee. After all, it was this Committee that played such a pivotal role in the passage of the Innocence Protection Act in 2004, which gave people who have been imprisoned access to DNA testing to prove their innocence. It was also this Committee that played a critical role in passage of the Coverdell amendment in 2004 which required State and local crime laboratories that receive Federal funding to conduct independent audits whenever there were serious questions about negligence or misconduct that would call into question the reliability of their forensic results. In that regard, I d like to congratulate the speaker to the left of me here, Harold Hurtt, who is the police chief of Houston who, frankly, embarked on probably the most comprehensive forensic science audit in the country of a laboratory, and did it before the Coverdell amendment went into effect, just simply did it proactively on his own, and it should be an extraordinary role model for other crime laboratories in the country. So, thank you, Chief Hurtt. But what I m here to talk about today is the real-life cost of what happens when forensic science is either misapplied or invalidated forensic science is relied upon to secure a conviction. On May 23, 1991 in upstate New York, a young social services worker was found dead outside of the farmhouse where she lived. She had been strangled, she had been stabbed. Her assailant had bitten her in half a dozen places, right through her nightgown into her skin. Roy Brown, who is sitting here behind me today, became a suspect in that case, primarily because he had a beef with the social service agency where this victim had worked. The centerpiece of the police case and the prosecution s case to convict Roy was testimony from a forensic dentist. The forensic dentist used what was then the prevailing methods of comparing bite marks found on a body with the dentures of a suspect. He examined them and he decided that he had a match with Roy s bite. He so testified in court and Roy was convicted. Fortunately for Roy, VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

13 9 it happened just before, a year before the New York State legislature brought back the death penalty, and so Roy received a life sentence. While in prison, he got very ill. He contracted hepatitis and almost died. But Roy never gave up fighting. He actually, through the FOIA request, got some police reports which identified a person who he believed had actually committed the crime. Roy wrote to him and said, One day they ll do DNA testing on those saliva stains left by the biter and it will demonstrate that you re the real perpetrator: repent now! The letter was sent, and 3 days later that man threw himself in front of an Amtrak train in upstate New York and killed himself. We got involved in the case, and of course we couldn t do DNA testing on the deceased because of the way he died, but we were able to eventually get DNA testing on the saliva stains all over the woman s back and compare them with DNA from the daughter of this man who threw himself in front of the train. Lo and behold, it was a perfect paternity. Again, the remnants of this man were exhumed, DNA testing was done, and everybody agreed, the prosecutor and the judge, that Roy Brown was completely innocent, having spent 15 years of a life sentence in prison for a crime he did not commit. You ve already heard from both Chairman Leahy and also Mr. Franken the story of Todd Cameron Willingham, who very well may have been executed, albeit completely innocent, simply because a State arson investigator used what were then prevailing, generally accepted means to determine when a fire was deliberately set as opposed to an accident. It just so happened that those means that he relied upon had never been scientifically validated and turned out to be unscientific, at least so say the five national experts who have reviewed the data in that case since. These are only two of the examples of the 242 people that we worked with at The Innocence Project who have been subsequently exonerated through DNA. Although Mr. Willingham was not exonerated through DNA, I think it s pretty clear he was innocent based on the other evidence. What folks have to realize about these cases, as Senator Franken pointed out, is it s not just about exonerating innocent people because in each of these cases the real perpetrator was out there committing other heinous crimes. In fact, in the 105 cases where we at The Innocence Project worked with police and prosecutors to identify the real perpetrator, it turns out that those real perpetrators committed a minimum of dozens of other vicious rapes and murders, rapes and murders that could be avoided if something had been done about that early on with better science. The real question here as we go forward is, are we going to try and have an independent scientific entity that can rigorously scrutinize the forensic disciplines and make sure that we have the best, robust methods possible, or are we going to allow the same old system to be perpetuated and allow innocent people to be wrongly convicted and the guilty to go free? I am confident that this Committee will not let that happen and will do the right thing. VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

14 10 Chairman LEAHY. Thank you very much. Again, thank you for your help in the past, especially the original Innocence Protection Act. Chief Harold Hurtt is the chief of police in Houston, Texas, a position he s held since 2004, am I correct, Chief? Chief HURTT. Yes, sir. Chairman LEAHY. Chief Hurtt began his career in 1968 with the Phoenix, Arizona police department. He rose to the post of executive assistant chief of police. After serving as chief of police for Oxnard, California, he returned to Phoenix in 1998 and served as chief of police there. Chief Hurtt has been selected twice by his peers as president of the Major Cities Chiefs Association. Chief Hurtt received his undergraduate degree in sociology from Arizona State University, and later received his master s in organizational management from the University of Phoenix. He and his associate are well known to this Committee, of course. It was about 38 years ago when the District Attorney of Harris County, a man named Carol Vance, was also the president of the National District Attorneys Association. I know that only because I was one of the officers of the National DAs at the time and went to Harris County and went to Houston a couple of times for meetings and one time for an extradition. Houston has changed a great deal since then. Chief HURTT. Yes, it has. Chairman LEAHY. Chief, it s good to have you here. Please go ahead, sir. STATEMENT OF HAROLD HURTT, CHIEF OF POLICE, HOUSTON POLICE DEPARTMENT, HOUSTON, TEXAS Chief HURTT. Mr. Chair and members of the Committee, good morning, and thank you for inviting me to testify today. It is, indeed, an honor. Today I will give you an historical account of the Houston Police Department s crime lab, talk about reforms implemented, and potential solutions for addressing challenges in forensics. In November of 2002, the Houston Police Department requested an independent audit of the DNA Section of the Houston Police Department by the Texas Department of Public Safety. Deficiencies were found that resulted in the suspension of DNA testing. An Internal Affairs investigation was conducted and discovered criminal and administrative violations. Two grand juries reviewed the evidence and no indictments were returned. Results of that investigation led to reprimands, suspensions, and separation of management and employees of the crime lab. In 2003, a review of cases in which DNA testing was performed began, in consultation with the Harris County District Attorney s Office. Three outside DNA laboratories were employed to conduct DNA re-testing. The police department hired the National Forensic Science Technology Center to assist in the evaluation of the crime lab s operation and to assess its employees. In September of 2004, I sought an independent review of the crime lab and property room. A stakeholders committee was put together to oversee the selection and progress of an independent investigator. Mr. Michael Brumwich, a former Inspector General with VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

15 11 the U.S. Justice Department, was selected. The stakeholder committee included various community leaders, civil rights advocates, prosecutors and defense attorneys, forensic scientists, and members of the academic community. The primary elements addressed by this study or investigation consisted of reviewing the past and present operation of the crime lab and property room. Serology incarceration cases from 1980 to 1992 were reviewed. The final report was issued in the summer of The investigation revealed the following: for the previous 15 years prior to the 2002 closing of the HPD DNA crime lab, or the DNA lab, there was a lack of support and resources for the crime lab. Ineffective management was in place. There was a lack of adequate quality control and quality assurance. There have been many reforms implemented in the Houston Police Department crime lab. We have implemented new crime lab testing procedures, practices, and policies. In 2005, the Texas State legislature mandated accreditation for all crime labs in the State. During that year, the crime lab received national accreditation from the American Society of Crime Lab Directors Laboratory Accreditation Board. It was accredited in the following areas: controlled substances, firearms, toxicology, question documents, and biology. In 2006, the crime lab received accreditation in DNA and trace analysis. Our hiring criteria has been upgraded, with emphasis on experience, certifications, and educational credentials. We have also imposed rigorous training requirements, including yearly ethics training. We have instituted a comprehensive quality assurance program and we have continued our cooperation with The Innocence Project. We have started case assessment strategies based on the United Kingdom model. A new property room has been built and robots are being evaluated for DNA testing. Now we d like to make some recommendations in reference to addressing the challenges in forensic science. First of all, proper funding for crime labs must occur. We need to take advantage of the new technology, especially robotics. The hiring of competent staff and training will be critical. Case assessment strategy that was implemented by and used in the United Kingdom must be used here. Also critically important is the educating of judges, prosecutors, and defense attorneys of the basic principles of scientific evidence. Thank you. Chairman LEAHY. Chief Hurtt, thank you very, very much. We appreciate the help you and your colleagues have given to this Committee over the years. I appreciate it very much. Chief HURTT. Thank you, sir. Chairman LEAHY. Paul Giannelli is the Albert J. Weatherhead, III and Richard W. Weatherhead Professor of Law at Case Western Reserve University. He began his career as a military prosecutor and defense counsel, where he became an academic expert in the field of evidence and criminal procedure. Mr. Giannelli has authored numerous articles and books on the use of scientific evidence. He received his J.D. and Master of Laws from the University of Virginia, and he has a Master of Science degree in forensic science from George Washington University. VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

16 12 Mr. Giannelli, welcome. Please go ahead, sir. STATEMENT OF PAUL GIANNELLI, PROFESSOR, CASE WESTERN RESERVE UNIVERSITY, CLEVELAND, OHIO Mr. GIANNELLI. Thank you, Mr. Chairman, Senator Sessions, Senator Franken. While serving in the Army during the Vietnam War, I was assigned to the forensic medicine program at the Armed Forces Institute of Pathology at Walter Reed. At the same time, I earned a Master s degree at George Washington University and I then taught a course on scientific evidence at the Army JAG school in Charlottesville for 2 years. I ve been at Case Western Reserve University for going on 35 years, and scientific evidence has been my area of research interest for that time. The publication of the National Academy of Sciences report is one of the most important developments in forensic science since the creation of the first crime laboratory in this country in the 1920s. The report is both comprehensive and insightful. Its findings are well-documented, and the need for a new approach, one rooted in science, as outlined in the report, is critical. In sum, I believe this is an exceptional report. Its recommendations, if adopted, would benefit law enforcement and prosecutors in the long run. It would allow forensic science to develop a strong scientific basis and limit evidentiary challenges regarding the reliability of scientific evidence. First, I want to stress the importance of scientific evidence in the criminal process. It is often superior to other forms of proof. Forty years ago, the Supreme Court noted that fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as an improper line-up or the third degree. More recently, the DNA exoneration cases have highlighted the problems with eyewitness identifications, jail informant testify, and false confessions. According to The Innocence Project, there are now over 240 exonerations. However, the exoneration cases have also exposed problems with scientific evidence, and I want to focus my remarks on what I believe is the crucial issue: the lack of empirical research in some forensic identification disciplines and how to address that. The lack of empirical research is noted in the report over and over again. Among existing forensic methods, only nuclear DNA has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, to demonstrate a connection between an evidentiary sample and a specific individual source. Another passage states, Some forensic science disciplines are supported by little rigorous, systematic research to validate the discipline s basic premises and techniques. There is no evident reason why such research cannot be conducted. Common identification techniques, those that rely on an examiner s subjective judgment, lack sufficient empirical support. For example, the report wrote, first, sufficient studies on firearms identification have not been done to understand reliability and repeatability of the methods ; two, the scientific basis for handwriting comparisons needs to be strengthened ; three, re- VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

17 13 search is needed to properly underpin the process of fingerprint identification ; four, testimony linking microscopic hair analysis with particular defendants is highly unreliable ; five, there is no science on reproducibility of the different methods of bite-mark analysis. Chapter five of the report documents these conclusions in detail and my research is in accord. Similar concerns can be found in court decisions for more than a decade. After the Supreme Court s decision in Daubert v. Merrill Dow Pharmaceuticals, some lower courts began to question how expert testimony was being presented at trial. In the Mitchell case, Judge Becker wrote, The testimony at the Daubert hearing indicated that some latent fingerprint examiners insist that there is no error rate associated with their activities. This would be out of place under Rule 702, which is the governing standard on expert testimony. In United States v. Green, the judge wrote, the more courts admit this type of tool mark evidence without requiring documentation, proficiency testing, or evidence of reliability, the more sloppy practices will endure; we should require more. In United States v. Crisp, the judge wrote that the government has had ten years to comply with Daubert. It should not be given a pass in this case. The case dealt with fingerprint and handwriting evidence, and this was six years ago. Firearms identification. Examiners testified in another case to the effect that they were 100 percent sure of their match. The judge wrote, Because an examiner s bottom-line opinion as to identification is largely a subjective one, there is no reliable statistical or scientific methodology to support that conclusion. In United States v. Glynn, the court wrote that the Government did not seriously contest the Court s conclusion that ballistics lacked the rigor of science, and that whatever else it might be, its methodology was too subjective to permit opinions to be stated to a reasonable degree of ballistic certainty. In Williamson v. Reynolds the court wrote: this court has been unsuccessful in its attempts to locate any indication that hair comparison testimony meets any requirements of Daubert. This decision was handed down in a habeas case five days before the scheduled execution date. A New York case in 1995 concluded that, forensic document examination, despite the existence of a certification program, professional journals, and other trappings of science, cannot, after Daubert, be regarded as scientific knowledge. Independent scientific research is critical and the most thorough and well-reasoned reports in the field have come from independent scientific investigation: the National Academy s voice print report in 1979, its DNA reports in 1992 and 1996, its polygraph report in 2002, the bullet lead report in The creation of a National Institute of Forensic Sciences, recommendation one in the report, is essential. An independent agency, steeped in the traditions of science, is required. In addition to independence and strong scientific credentials, a new entity should be dedicated solely to forensic science. It should not be encumbered with multiple missions. VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

18 14 Once in place, it could focus quickly on the agenda outlined in the report. Moreover, a national institute would have the prestige to attract top scientists to the field and to influence universities to conduct peer-reviewed research and to establish rigorous educational programs. In contrast, an entity that is part of an agency in another department will not attract the same level of talent. Finally, there are many talented, conscientious examiners working in crime laboratories throughout this country. These examiners need to be supported, they need funds for better equipment and advanced schooling, and continuing education. Thank you. Chairman LEAHY. Thank you very much, Mr. Giannelli. Mr. Matson is from Alabama, and I d ask if Senator Sessions would like to introduce him. And we thank you for being here, Mr. Matson. Senator SESSIONS. Thank you, Mr. Chairman. It s a delight to introduce Barry Matson to the Committee. He is an experienced prosecutor who has personally tried many serious major felonies, including capital cases. He s conducted grand jury investigations and personally worked with a lot of complex cases. He now is the chief prosecutor for the Alabama Computer Forensic Laboratories and is deputy director of the Alabama District Attorneys Association. He is founder of the National Computer Forensic Institute in Hoover, Alabama. I think he ll provide some valuable information to us from a practical perspective, Mr. Chairman. Thank you for inviting him. Chairman LEAHY. Thank you, Senator Sessions. Please go ahead. Senator SESSIONS. I would note, his degree is from Jacksonville State University in criminal justice, undergraduate, which has got an excellent criminal justice program, and his law degree at Birmingham School of Law. STATEMENT OF BARRY MATSON, DEPUTY DIRECTOR, ALA- BAMA DISTRICT ATTORNEYS ASSOCIATION; CHIEF PROS- ECUTOR, ALABAMA COMPUTER FORENSICS LABORATORIES MONTGOMERY, ALABAMA Mr. MATSON. Thank you, Your Honor. Mr. Chairman and members of the Committee, I want to thank you for the honor of appearing before you to discuss the National Academy of Sciences report. It is especially significant that we appear before you on a subject so vital to the future of law enforcement, prosecution, and the administration of justice everywhere. I m a career prosecutor. Prior to my current position, I was Chief Deputy District Attorney in Talledega County, Alabama for 16 years. In that county, in Talledega County, it s not unlike most jurisdictions across this country. We were faced, and are faced every day, with challenges facing the criminal justice system while our dockets were exploding. We faced those challenges with a strong work ethic, a deep passion to protect the public, and to do justice. Mr. Chairman and members of the Committee, please know, a prosecutor is held to a higher standard than that imposed on other attorneys because of the unique function we perform in representing the interests and exercising the sovereign power of the VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

19 15 State. In my testimony today I will endeavor to give a voice to the everyday prosecutor, struggling with too few resources, expanding caseloads, as well as agenda-driven criminal defense lobbies. We applaud Congress for directing the National Academy of Sciences to undertake the study that led to this report. It is not in spite of the fact that we are prosecutors that we welcome a serious critique of the forensic science process, it is because we are prosecutors. But like many endeavors, those with agendas have made an impact, not only on this report, but now in the courtrooms across this country. The absence of prosecutors on the National Academy of Sciences Committee on Forensic Sciences has not been lost on those of us serving every day in the trenches of America s courtrooms. The failure of the Committee to seek the consultation of State or local prosecutors in its eight separate meetings is glaring and overlooks one of the criminal justice system s most vital components. Mr. Chairman and members, you well know the role of the prosecutor in the American system. A prosecutor is to judge between the people and the government. He is to be the safeguard of one and the advocate of the rights of the other. Make no mistake about it: I and my colleagues I m a tough prosecutor and I vigorously seek justice for the victims in the community. However, that toughness is tempered with a simple desire to do what is right. One thing that has been grossly overlooked in all the process that has gone on in this report is that prosecutors and forensic science professionals do more every day to free the innocent and safeguard the liberties of our citizens than any defense project or academician will ever do in their career. Those entities have no burden or have taken no oath to seek the truth. Conversely, they are required to suppress the truth when it serves the best interests of their needs and of their client. Have regrettable instances occurred in the forensic setting? Yes. Is it to the level that some entities and special projects would have us to believe? Absolutely not. As long as human beings are involved, we will endeavor to do the very best we can, but no system we ever have will ever be perfect. However, the NAS report before you seems to erroneously focus on perceived biases in the forensic law enforcement communities. Forensic technicians and scientists are said to be rife with cognitive bias. This report says they demonstrate bias by seeking to play supervisors or by basing results on suggested data. Some passages suggest that forensic scientists simply might see things that don t exist or skew their outcome by intentionally presenting their findings in an unfair way to produce a particular result. If we follow that logic, we must ask this question: when a fingerprint examiner in some jurisdiction tells us that a suspect is excluded as a source of the latent print, meaning that person didn t do it, should we now charge him anyway because the examiner s cognitive bias may affect the examination? Obviously the answer is a resounding no. That s a silly question. But it makes a point that this report overlooks. In other words, this report suggests that the only time forensic sciences is wrong or inaccurate is when the conclusion by the scientist or technician points to the guilt of the accused. If the evidence does not, then everything is okay. VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

20 16 As we speak in courtrooms all across this country and in jurisdictions of yours and your States, a prosecutor is trying to do the right thing. As a seeker of truth, that prosecutor must be able to do everything possible and take every tool into the courtroom that they can to seek justice. If she does not have the forensic evidence juries have come to demand from a satiation of crime scene television and the defense bar demands, she is bludgeoned with pleas of, where are the fingerprints, or where is the bullet? But if that prosecutor has such evidence and it is relevant and admissible, she must now defend that evidence from the defense lawyer s attacks using this NAS report as Defendant s Exhibit Number 1. It s happening every day in our courtrooms. Members of this Committee, it is vital that you know the negative impact this report has already had on prosecutors trying to find the truth in every jurisdiction across this country. Former convictions and current prosecutions are being challenged by using the words of the NAS report to attack forensic science evidence. This is true, even though the report made efforts to say that no judgment is made about past convictions and no view is expressed as to whether courts should reassess the cases that have already been tried. We welcome the recommendations of this Committee, in conclusion, and of the NAS report. We believe that some of these recommendations will serve to strengthen forensic sciences for years to come. However, we absolutely recognize and vehemently disagree with portions of the agenda-driven attack upon well-founded investigative techniques. These same techniques or sciences are used every day to find the truth in every type of case. As an investigative tool, every discipline of forensic sciences has not simply led to convictions, but has delivered the truth. I know this truth, and I sleep very well at night knowing that the dedicated prosecutors, forensic technicians and scientists working in independent law enforcement agencies or labs use their craft to see that justice is done, innocents are exonerated, and the guilty are held responsible for their actions. I thank you for your time. Chairman LEAHY. Thank you very much. Our next witness is Matthew Redle. Did I pronounce that correctly? Mr. REDLE. Redle, Mr. Chairman. Chairman LEAHY. Redle. Redle. Sorry. Mr. Redle. That is the note that I had from my staff, so it s my fault, not theirs. Matthew Redle is a County and Prosecuting Attorney in Sheridan, Wyoming. Mr. Redle has given lectures and conducted training on forensic issues at the National Advocacy Center and for organizations including the National District Attorneys Association, the Wyoming Division of Criminal Investigation, and the Wyoming State Crime Laboratory. He s been a panelist at the National Institute of Justice on post-conviction DNA issues. He s a member of the Council of the Criminal Justice Section of the American Bar Association. Mr. Redle received his undergraduate and law degrees from Creighton University. Mr. Redle, please go ahead, sir. VerDate Nov :20 Aug 04, 2010 Jkt PO Frm Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54720.TXT SJUD1 PsN: CMORC

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